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Before the Police Arrive

(Be prepared before the police arrive to request library records)

Introduction

  • Privacy is essential to the exercise of free speech, free thought, and free association. Library patron privacy is assured by federal, as well as Wisconsin, law.
  • When law officers suspect that criminal activity has taken place in a library, they will expect cooperation, but libraries need to cooperate with law officers without violating their patrons’ right to privacy.
  • Police may not be aware of laws governing privacy and libraries until they encounter specific situations.
  • When police show up at your library requesting information, records, or equipment, it can be unsettling.
  • Being prepared for visits from law enforcement before they happen, and coming to a common understanding, will make the situation less difficult for everyone involved.
  • The following background, guidelines, and procedures are recommended to make encounters between law enforcement and libraries as effortless as possible. You may want to modify them to meet your local situation.

Background and Legal Basis

  • Professional library ethics require that our patrons’ personal identification be kept confidential.
  • Under Wisconsin Statutes 43.30, public library records that indicate the identity of any individual who borrows or uses the library's documents or other materials, resources or services may only be disclosed in the following instances:
    • with the consent of the individual library user;
    • by court order;
    • to persons acting within the scope of their duties in the administration of the library or library system;
    • to other libraries (under certain circumstances) for interlibrary loan purposes;
    • upon the request of a custodial parent of a child under the age of 16; or
    • to law enforcement officer investigating criminal conduct that occurred at the library, or to law enforcement officer when library has requested their assistance. [This provision only applies to library surveillance tapes.]
  • Under Wisconsin Statutes 19.62-19.80, all state and local government organizations, including public libraries, are required to follow procedures to protect the privacy of personal information kept by the organization. These procedures include rules of conduct for all employees involved with personally identifiable information, and assurance that employees understand their responsibilities relating to personal privacy.

Be Prepared:

  • Have a face-to-face meeting with your local police department, your municipal attorney, and mayor/village president/or chief executive) before any incident takes place.
  • Have a library confidentiality policy.  Sample.
  • Designate the person or persons who will be responsible for handling requests from law enforcement. In most cases, this should be the director, manager, or “person in charge.”
  • Have a list of the hierarchy and backups, so it is clear to all staff who is responsible for handling such requests at any given time, i.e., if the director is not present, X is the person, if neither the director nor X is present, Y is the person, etc.
  • Train all library staff, including volunteers, on the library’s procedure for handling requests from law enforcement.
    • It is lawful to refer the agent or officer to the person in charge.
    • It is lawful to not respond immediately.
  • When the library suspects, or becomes aware of, criminal activity in the library or on library computer workstations, library staff should report the activity to law enforcement, and remind them of the need for a court order. See Suggested Procedure (When criminal activity has been committed on library workstations.)

Note: Violating your Internet policy is not a crime!

Initial Visit from Law Enforcement

(Note: Individual agreements you make in your meeting with the police and municipal attorney may streamline this process.)

Front line staff:

  • STOP.  DO NOT answer any questions.
  • Refer them to the person designated to handle requests from law enforcement.

Director or other person designated to handle law enforcement requests:

  • Ask for identification.
    • If proper identification is shown, proceed as described below.
    • If proper identification is not shown, assure them the library intends to cooperate, but must see identification first.
  • Ask to see the agent or officer’s court order.
  • Contact the municipal attorney (or the library’s counsel) to review the court order.
  • If the agent or officer does not have a court order compelling the production of library records, politely explain the library’s confidentiality policy and the state statutes governing confidentiality of library records.
    • Library records disclosing the identity of individuals using the library’s resources or services are NOT available without a proper court order in good form.
  • IMPORTANT: Without a court order, neither the FBI nor local law enforcement has the authority to require answers to questions, other than your name and address.
    • If they persist, be pleasant, assure them you DO wish to cooperate, but will NOT respond to informal requests for confidential information. To do so would violate:
      • your professional ethics;
      • First Amendment freedoms; and
      • Wisconsin state law.

When the court order is presented to the director or other designee:

If the court order is in the form of a subpoena, directing library staff to produce library records:

  • Ask the municipal attorney (or library counsel) to determine if the subpoena is a court order. (Not all subpoenas are.) Do not disclose library records indicating the identity of library users, in response to a subpoena that is not a court order.
  • Ask the municipal attorney (or library counsel) to review the subpoena for any legal defect, including the manner in which it was served, the breadth of its request, or an insufficient showing of good cause.
  • If a defect exists, legal counsel will advise on the best method to resist the subpoena.
  • Through legal counsel, require that any defect be cured before records are released, and that the subpoena is strictly limited to require release of specifically identified records or documents. Require that a new subpoena in good form without defects be submitted.
  • Review the information that may be produced in response to the subpoena, prior to releasing any information. Follow the subpoena strictly and do not provide any information that is not specifically requested in it.
  • If disclosure is required, ask legal counsel to draft a protective order to be submitted to the court keeping the requested information confidential and limiting its use to the particular case.
  • Follow legal counsel’s advice for compliance with the subpoena.

If the court order is in the form of a search warrant:

  • A search warrant is executable immediately, unlike a subpoena. The law enforcement officers may begin a search of library records as soon the library director or other designee is served.
  • Request that the law enforcement officers wait until the municipal attorney (or library counsel) is present before the search begins in order to allow counsel an opportunity to examine the search warrant and to assure that the search conforms to the terms of the search warrant. (The law enforcement officials are not required to accede to your request to delay the search.)
  • Cooperate with the search to ensure that only the records identified in the warrant are produced and that no other users’ records are disclosed.

If the court order is in the form of a search warrant issued under the Foreign Intelligence Surveillance Act (FISA), as amended by the USA PATRIOT Act:

  • All of the points listed for a regular search warrant, above, still apply.
  • In addition, search warrants issued by a FISA court also contain a “gag order.” That means it is illegal to disclose to any other person (other than those persons necessary to produce the tangible things sought in the warrant) that the Federal Bureau of Investigation has sought or obtained records or other items under the Foreign Intelligence Surveillance Act (FISA).
  • The library and staff must comply with this gag order. No information can be disclosed to any other party, including the individual whose records are the subject of the search warrant.
  • The gag order does not change a library’s right to legal representation during the search. The library can still seek legal advice concerning the warrant and request that the library’s legal counsel be present during the execution of the warrant.
  • Any agreements among the library, police, legal counsel and municipal officials may not apply in these situations.

Definitions

  • Court order: a written document issued by a court, which becomes effective only when signed by a judge or court commissioner.
  • Subpoena: a call to come before a court, and may include direction to bring specified records. Not all subpoenas are court orders. (A subpoena is issued at the request of an attorney or a law enforcement officer, and is not reviewed by a judge prior to issuance.) Legal counsel can determine if a particular subpoena is a court order.
  • Search warrant: an order signed by a judge directing a law enforcement officer to conduct a search of a designated person, object, or place, for the purpose of seizing designated property or kinds of property.
  • USA PATRIOT Act: an amendment to the Foreign Intelligence Surveillance Act (FISA), which allows the FBI to apply for a court order requiring the "production of any tangible things (including books, records, papers, documents and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment..."

Meetings with Police, Attorney, and Media

We recommend that you have a meeting with your municipality's chief of police, attorney, and mayor/village president before any incident which requires the police to request library records.  This meeting should be followed by a meeting with your local media. See the Preparatory Meeting page for more information about these meetings. 

Other Sources of Information

For more information, contact
Tracie Miller